Tuesday, February 23, 2010

Maybe There Won't Always Be an England

Hindus and Sikhs in Britain won a landmark court victory yesterday that will allow mourners to cremate their dead on funeral pyres.

The Court of Appeal ruling follows a lengthy battle waged by a devout 71-year-old Hindu for the right to be cremated by "sacred fire" according to the ancient diktats of his religion.

Davender Kumar Ghai’s attempt to establish the first approved site in Britain for the 4,000-year-old spiritual ceremony was blocked four years ago by Newcastle City Council, which ruled that human pyres were unlawful.

The local authority’s decision was upheld by the High Court last year, when the Ministry of Justice argued that "a large proportion of the population of the United Kingdom would be upset and offended and would find it abhorrent if human remains were burned on open-air pyres".

That ruling has been overturned by a panel of three Appeal Court judges headed by the Master of the Rolls, Lord Neuberger of Abbotsbury, who said that existing cremation laws did not prohibit the burning of human remains on a wooden pyre open to natural air and sunlight.

8 comments:

I'm not really clear on what the issue is here. They want to burn their dead in a manner in accord with their religion. If it's safe and sanitary, what difference does it make? And has anyone actually done a REAL survey of the overall "offensiveness" this would entail to the general populace?

And, from an American, rather than Brit perspective -- does it matter that much in this case what the masses think? In the USA, at least, there is a reasonable balance between what the majority wants and what the individual desires. This clearly ain't Britain, but I'm curious about the idea even in the USA. As long as it's done in such a manner that there is no offensive stench deeply visited on others (and we're talking about people having lived near a horse field in some cases, so factor that notion in), it seems easy to accomodate these people while avoiding general offense.

The problem is allowing freedom of religion to overrule the laws and preference of the people. If we presume that the majority of Brits wouldn't want open-air body burning (as the government argued in the previous court decision), why does freedom of religion give Hindus the right to overturn that? The original law was religiously neutral and served a secular purpose, so would likely have be upheld under US jurisprudence. The issue is not a "survey" of "offensiveness" -- the pre-existing law was itself that judgment expressed through popular sovereignty.

> the pre-existing law was itself that judgment expressed through popular sovereignty.

a) I don't think the current political structure in the UK does a particularly good job of listening to popular sovereignty. Hence the law may not reflect that at all -- the inability to defend one's self in one's own home comes to mind -- I don't think many people can argue with that, yet the law in the UK seems to get more and more against the idea.

b) I honestly don't see why religious freedom does NOT trump the local law, here. Other than obvious social concerns (i.e., where did this body come from? Were they murdered?) I don't see where the State gets off telling people how they must dispose of their own bodies, which strikes me as about as personal and individual as you get. There can be constraints based on odor, pollution, and "finding the body a second time" with the issues that entails which it does have a societal argument for claiming say over, none of those are applicable here. Why should my neighbor be able to tell me I can't burn my dead body in a time and place and manner which has no direct effect on them? If my religious practices call for me to be chopped into little bits and fed to pigs, whose @#%#%$ business is that but my own and that of those I've charged with the task (granted, one could raise questions about the later disposal of the pigs in that situation)?

Why should "majority rule" apply here at all? This seems definitely into "tyranny of the majority" territory.

And no, I'm not arguing with your knowledge of what the existing statutes call for in any particular venue. I'm asking instead why this is something the government has any say in (beyond the obvious nature of concerns already implied and granted) at all?

The answer is that, under US law, religiously neutral statutes that serve a secular purpose do not violate religious freedom even if they impose some constraints on religious practices. You say "no direct effect on them," but the people (and the law) said otherwise, requiring indoor cremation. After all, there are restrictions on when and how you can burn leaves--are they unlawful should a Hindu want to go out with a garland? If a faith claimed its traditions required having intercourse on public streets, ought freedom of religion to trump law?

And I caution you about presuming against popular sovereignty--that's pronouncing a government illegitimate. It makes you sound like a disgruntled Democrat.

And, for the most part, those are local in-city type of ordinances, that is, out in the outlying areas of a county, as opposed to the inner city, there aren't generally such restrictions with the sole fully legitimate social exception of fire-danger concerns.

> If a faith claimed its traditions required having intercourse on public streets, ought freedom of religion to trump law?

No, for reasons already covered above -- this is a question of "who the hell is being harmed"?

In such a ridiculous case as you claim, it's obvious that the individuals exposed to the practices are being harmed.

Sorry, Carl, not letting your straw men stand unchallenged any more so than Thai's.

> And I caution you about presuming against popular sovereignty--that's pronouncing a government illegitimate. It makes you sound like a disgruntled Democrat.

Oh, don't even GO there. I cited specifically a distinction -- that popular sovereignty is, in our society, and specifically as a part of the Constitution, supposed to have limits.

You can argue about where those limits lie, but certainly one of the justifications for the boundaries ties to who is being harmed by the law -- i.e., there is a legitimate social reason for the law being as-is.

Popular sovereignty isn't supposed to be a straight-jacket for the individual to be told what to do by the masses, just because the masses are of opinion 'x' as opposed to the individual's opinion 'y'.

I ask you overtly: What non-Hindu is being 'harmed' by the idea of a Hindu-style funeral pyre, how, and why? This answer allows the Hindu to find a middle ground where their own practices do not cause notable harm to others, yet still allows them to practice according to their Faith.

I don't say they should be able to do it "in town", for example, but suppose you went out on the Scottish countryside a mile away from anyone's home, allowing any smoke and scent to dissipate reasonably? Why should this not be allowed? If no one is being harmed, then "popular sovereignty" has no rational sway, and the free rights of the individual to live, do, and be as they so will should hold in its place.

Not saying that's what The Law allows -- I'm saying that's what it should, and, by the efforts of the FF's, have BECOME.

The only place popular sovereignty should hold sway is where the populace has an overt specific interest collectively, and/or where the free rights of two individuals come into conflict (and no, merely "being offended by someone else's religious practices" is not one of those free rights -- that is not a path we should be traveling down, though I grant it is one we're all too far along).

OBH: I think we are arguing past each other, which is my fault. My objection is to a judge voiding application of a religiously neutral statute serving a secular purpose. I would have no problem with a change to the law allowing Hindus to exercise greater religious freedom in this context. So I would tell aggrieved Hindus: go get the votes.

The society has the following reasonable expectations for the disposal of a dead body:

1) Safety. The disposal mechanism must not present a threat to the general populace nor to any unexpecting individual.

2) Disposal. "body parts" should not turn up again later in such manner needing to be identified so as to rule out foul play.

3) Direct offense. An individual not associated with the disposal should have no rational exposure to the disposal mechanism or the disposed parts -- if they can smell it, experience odorless smoke from it, come into contact with some recognizable remnant (i.e., not requiring a laboratory analysis to identify its presence and/or nature), whatever -- in any public location, then they are being improperly "exposed" to it.

4) (cite me anything I'm missing, off hand. You should be able to see what I'm getting at)

Beyond this, IT'S NOT THE PUBLIC'S BUSINESS. The public lacks standing to pass ANY law, because the action in question isn't affecting them. The rights of the individual to freely pursue their religious beliefs, hell, their own damned free will at all, take precedence.

As a result, yes, the judiciary HAS standing (or should, in a properly functioning judicial system) to reject the basis for the law entirely.

Judge: "Hey, it's none of yer damned business, folks!"

This is where the "tyranny of the majority" is supposed to lose out to the rights of the individual. The majority must DEMONSTRATE a rational interest of its own to protect in order to justify restricting the actions of the individual.